Washington Brief - September/October 2004

On the Intellectual Property Front
Congress will return from the August recess after Labor Day, and their scheduled date of adjournment is October 1st since this is a presidential election year. Whether or not this target date will be met is questionable, not only because of their usual slow pace in enacting the 13 appropriations bills for the new fiscal year but also because Congress seems eager to act on a number of the recommendations of the 9/11 panel. This means, though, that we have an extremely short timeframe as the 108th Congress winds down this fall. Most troubling to us is the possibility of an omnibus intellectual property bill that could spring up on the House floor as a manager's amendment, bypassing committee review, and move quickly to the Senate. Here's a short summary of the copyright legislation we have been monitoring during the past few months.

The Washington Office worked closely early this summer as a founding member of the new Personal Technology Freedom Coalition to get more sponsors for H.R. 107, the Digital Media Consumers' Rights Act (DMCRA). Introduced at the beginning of the 108th Congress by Rep. Rick Boucher (D-9-VA), the DMCRA would amend Sec. 1201 of the Digital Millennium Copyright Act by permitting the circumvention of a technological protection measure for a non-infringing purpose. Following a very positive hearing by the House Energy and Commerce Committee in mid-May and a public showing of support by the committee's new chair, Rep. Joe Barton (R-6-TX), the growing momentum to pass H.R. 107 in the House this year has slowed appreciably because of beefed-up opposition by the Motion Picture Association of America and the recording industry.

Chairman Barton's hope to move H.R. 107 through the full committee and to the House floor in September has dimmed considerably. It looks like we may have to renew efforts and possibly develop a new strategy for amending Sec. 1201 in the 109th Congress next year. During the Boston conference, the Washington Office, Copyright Committee and Government Relations Committee jointly sponsored a highly successful postcard campaign that resulted in more than 300 postcards being mailed from law librarians to their House representative urging support for the DMCRA. Thanks to all of you who took the time to fill out a postcard to get new sponsors for this important legislation that is crucial to restoring balance in copyright law for the digital age!

AALL has opposed several bills that could form the core of an omnibus intellectual property act this fall. Working with another strong coalition, we once again thwarted efforts by the House Judiciary Committee to enact the Database and Collections of Information Misappropriation Act (H.R. 3261) that would give database producers ownership of "facts." Using the same tactic that worked effectively in the 106th Congress, we succeeded in getting a dueling database bill, the Consumer Access to Information Act (H.R. 3872), introduced in the House Energy and Commerce Committee this spring.

On the Senate side, we opposed S. 2560, the Inducing Infringement of Copyrights Act (INDUCE Act) that was introduced by Sen. Hatch (R-UT) in June. According to Hatch, who is the powerful chair of the Senate Judiciary Committee, the new legislation is needed to allow copyright holders to sue corporations that profit by encouraging or "inducing" children, teenagers and others to commit illegal or criminal acts of copyright infringement. Its goal is to address the concerns of legislators and others with peer-to-peer file sharing and to reverse a recent court decision, MGM at al. v. Grokster et al. The bill is strongly supported by Hollywood and the recording industries, and opposed by just about everyone else. Technology companies oppose the INDUCE Act because it would harm innovation and could potentially outlaw some of the most popular consumer devices, such as DVD players and iPods. Libraries and higher education are opposed because it has unintended consequences far beyond targeting those who infringe copyright and would chill educational innovation. File-sharing on university networks or university-created technology that enables file-sharing could put universities at risk for lawsuits.

In June 2004, AALL participated in an amicus brief with five other library and archives associations in Faulkner v. National Geographic Society, a case that has major implications for projects that involve retrospective digitization of print versions of scholarly materials and the public's access to those materials. The brief is in support of the National Geographic Society (NGS) in an appeal to the U.S. Court of Appeals for the Second Circuit. The main issue in the case is whether the NGS is permitted under Section 201(c) of the Copyright Act to produce a "virtually exact image-based reproduction" on CD-ROM of the entire print version of the National Geographic magazine from 1888 to 1996, in a searchable format. Several freelance photographers, as well as some writers, sued the NGS for copyright infringement because some of their works are included in the CD collection. At stake in the case is whether publishers of collective works and others who may choose to legitimately digitize them can re-publish those works in a digital format without seeking permission of authors or other contributors.

We submitted the brief because we are very concerned that a reversal of the lower court decision would thwart efforts to digitize selected library collections, thus reducing access to these important resources by the public. We support the decision by Judge Kaplan of the U.S. District Court for the Southern District of New that the Copyright Act permits the NGS to reproduce and distribute, through the CD-ROM compilation, the copyrighted materials that appeared in the original issues of the magazine. Judge Kaplan found that as long as digital versions place photographs and articles in the same context as the print original, there is no infringement of copyright. Thus the District Court determined that the fact that articles and photographs appear in a new medium makes no difference to the case.